ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00014638

Parties:

	Complainant	Respondent
Anonymised Parties	An Associate Lecturer	A third Level College

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00019172-001	14/05/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00019172-002	14/05/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00019172-003	14/05/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00019172-004	14/05/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00019172-005	14/05/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00019172-006	14/05/2018

Date of Adjudication Hearings: 20th March 2018, 28 January 2019 and 20th March 2019.

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003; Section 6 of the Payment of Wages Act, 1991;Section 27 of the Organisation of Working Time Act, 1997; Section 7 of the Terms of Employment (Information) Act, 1994; Section 24 of the National Minimum Wage Act, 2000 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Associated Claims:

This Adjudication reference Adj-000014638 is very closely linked to Adj-00009450. This latter Adjudication is between the same parties as this case - Adj-00014638.

It is best to read both sets of claims and Adjudication decisions together.

Opening Legal Points re Adjudication Officer Jurisdiction

The Respondent employer, a Public Educational Body, pointed out that the issue involved /claims were clearly in the Body of Workers category. The entire situation of the Associate lecturers was the subject of a “Conversion Process” flowing from the Public Service Stability Agreement 2013-2016 (Haddington Road Agreement). Unions representing Employees, Management Associations and the Department of Education and Science /DEPER are currently in extensive talks/negotiations.

While the progress of the talks has been somewhat protracted the outcome will, it can only be reasonably hoped, materially address the issues of complaint to the Complainant and her colleagues.

Accordingly, it was the strong Respondent Argument, that the Adjudication officer has no jurisdiction to hear the Claims as they are clearly of the Body of Workers nature and thus excluded by the Industrial Relations Act,1969

The Complainant responded in the view that she has, as a citizen, legal and indeed Irish Constitutional rights, European & ECJ fundamental rights to have her claims addressed irrespective of any negotiations of which she is not a part. She is no longer a member of any Trade Union or Representative Association. She is an Individual Complainant and the Body of Workers argument cannot apply to her.

The Adjudication Officer reserved, at the opening hearing, his judgment in this issue

It was intimated that it needs be these complaints would go the ECJ following the exhaustion of all Irish avenues of Redress.

It is important to note that at the first Initial Hearing into this case, specifically on the related case Adj 9450, on the 20th March 2018, the Parties agreed, somewhat reluctantly on the Complainant’s part, that the Adjudication might best be postponed to allow the Haddington Road process work itself out and a new arrangement be arrived at for Associate Lectures. The current claim Adj 14638 was lodged on 14th May 2018, subsequent to this initial March Hearing on Adj 9450.

The delays in this Haddington Road “conversion” process became frustrating and the Complainant requested a resumption of the Hearing which took place eventually on the 25th March 2019.

Background:

The issues in contention relate to Terms and Conditions of Employment, in their broadest sense, of an Associate Lecturer and comparisons / queries being made relating to other Grades of Lecturer employed by the Institution.

1: Summary of Complainant’s Case:

A truly voluminous amount of evidential material was submitted by the Complainant. The Table below is a brief precis of the materials submitted.

Act	Complaint/Dispute Reference No.	Summary Claim
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00019172-001	As a fixed Term Employee, the Complainant was treated less favourably than a comparable permanent Employee. Extensive and detailed examples were cited in support.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00019172-002	The Complainant alleged (1) Unlawful delays in receiving her payments (2) Failures to provide a proper Time Schedule for Payments (3) The Complainant alleged that she was not paid for the complete Totality of her work, preparation, student interactions, exam corrections and preparations etc. This resulted in her effectively getting less than her National Minimum Wage.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00019172-003	The Complainant is not paid for Public Holidays.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00019172-004	The Complainant has not received the required Statement in writing of her Terms and Conditions of Employment.
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00019172-005	The Complainant evidenced the wide range of her duties, the Totality of her Work and the time commitments involved. When considered objectively and calculated in total the renumeration paid does not come near the minimum rate as set out by the National Minimum Wage. The Totality of Her work is not fairly considered.
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00019172-006	The terms and Conditions offered and that are paid to Complainant are far short and most unfavourable when compared to full time and day time Lecturing colleagues. The Complainant is according grossly undervalued by the Respondent Institution and routinely treated unfairly

2: Summary of Respondent’s Case:

2:1 Opening Comments:

A detailed rebuttal Submission was made supported by extensive Oral and additional written materials.

The Respondent raised the opening Legal argument set out above regarding jurisdiction. The Complainant’s entire case is a Body of Workers claim that is being addressed in the Conversion Talks under the Haddington Road Agreement.

The Complainant is employed under Nationally Agreed terms across all Institutions and the Respondent cannot reasonably be expected to engage with one individual against this background.

On the outcome of the Conversion talks at central level most of the issues of concern to Associate Lectures, such as the Complainant, will hopefully have been addressed across the entire Sector.

The entire claims and the Legal process involved in addressing them are effectively consuming resources in a situation that will inevitably be overshadowed and over taken by the National level talks.

In detailed responses to the Complainant’s claims all the actions of the College are in keeping with Standard Across the Board institutional practices in the Third Level Educational Sector. The College has not in any material way deviated from these in their engagements with the Complainant.

2:2 Detailed Responses

Act	Complaint/Dispute Reference No.	Summary Respondent Response.
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00019172-001 As a fixed Term Employee the Complainant was treated less favourably than a comparable permanent Employee.	The Complainant was engaged as an Associate Lecturer. All Nationally determined Terms and Conditions applied to her.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00019172-002 The Complainant alleged (1) Unlawful delays in receiving her payments (2) Failures to provide a proper Time Schedule for Payments (3) The Complainant alleged that she was not paid for the complete Totality of her work, preparation, student interactions, exam corrections and preparations etc. This resulted in her effectively getting less than her National Minimum Wage.	All Nationally determined Terms and Conditions applied to her.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00019172-003 The Complainant is not paid for Public Holidays.	All Nationally determined Terms and Conditions applied to her.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00019172-004 The Complainant has not received the required Statement in writing of her Terms and Conditions of Employment.	This was resolutely denied. Written evidence to rebut was given in evidence.
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00019172-005 The Complainant evidenced the wide range of her duties, the Totality of her Work and the time commitments involved. When considered objectively and calculated in total the renumeration paid does not come near the minimum rate as set out by the National Minimum Wage. Totality of Her work	The Complainant was engaged as an Associate Lecturer. All Nationally determined Terms and Conditions applied to her. The claim is without sound foundation as it seeks to reinterpret what are in effect National Level Agreements between Third level Institutions and Representative Bodies.
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00019172-006 The terms and Conditions offered and that are paid to Complainant are far short and most unfavourable when compared to full time and day time Lecturing colleagues. The Complainant is according grossly undervalued by the Respondent Institution and routinely treated unfairly	This is the core of this claim. The College applies what are in effect National level Agreements and the Respondent or Complainant cannot seek to deviate from these in the absence of a New national Agreement.

3: Findings and Conclusions:

Initial General Observations

3:1 This case Adj 14638 ran in parallel with Adj 9450.

To best consider the overall context I will begin by considering the Complaint under the Industrial Relations Act,1969. This is in reverse order to the Complaints as listed above.

3:1:1 Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00019172-006

I feel, after considerable reflection and study of the truly voluminous amount of material produced in written form in this case that the best observations and Recommendations can be offered by an Adjudication officer under the relative freedom afforded by the Industrial Relations Act,1969.

Accordingly, I make the following observations prior to making any formal Recommendations.

The situation for and terms & conditions of Associate Lectures is difficult and even more so when compared to other Academic staff on what could be called “Day Style” contracts. There is no avoiding this conclusion. The Complainant proposition /argument of the Value of the Totality of her Work not being properly reflected in the Associate Lecturer arrangements was also strongly argued.

The difficulties are all the more apparent in this case where the Complainant is an Academic of the highest qualifications and professional repute. At all stages it was clear that she was held in high esteem by the Respondent employer. However, until such time as the Complainant secured a permanent day Time contract there was little they could do outside of National agreed frameworks.

The issue has been a long running saga in the Colleges that employ the Grade of Associate Lecture. It is a National Level issue involving the Colleges and ultimately the central Exchequer via the Department of Education and Science and DEPER.

The addressing of this issue can accordingly only be resolved at a National level. The “Conversion Talks” under Haddington Road are currently engaged on the matters involved and it is only there that a resolution will be found.

The Complainant, in this case, choose to move away from Representation by the main Trade Union involved -the Teachers Union of Ireland and to seek to pursue her own case privately.

It has to be recognised that this was entirely her right and legal situation as a Citizen of the State with Irish Constitutional rights and European rights. The issue is one of the tensions that often arise between Individual Rights versus the Collective Right in any Industrial Relations or Employment or indeed Public Administration situation.

Good public order and basic practicalities must apply -the employment relationship covers many individuals and institutions. The ultimate Employer can only be reasonably expected to deal with it on a collective basis via a collective mechanism such as the Haddington Road “Conversion” process.

In conclusion the complaint in this Adjudication is without doubt a Body of Workers claim and as such cannot proceed under the Industrial Relations Act,1969.

3:1:2 Formal Recommendation.

Accordingly, I must set this complaint aside as not being within the jurisdiction, as per Section 13 of the 1969 Act, of an Adjudication Officer.

My concluding, Industrial Relations only, comment is that the Complainant should seek to immediately re-establish a close relationship with the Teachers Union of Ireland so that her obvious expertise and enormous background work on the Associate Lecture situation can be productively relied upon by the Union in the Conversion Talks under Haddington road.

3:2 Decisions regarding the Other Complaints.

I considered all the written materials submitted by both parties and the Oral evidence given.

Act	Complaint/Dispute Reference No.	Summary Decision.
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00019172-001	The situation of the Complainant is in keeping with National norms and collectively agreed Regulations. Accordingly, I could not find the Complaint to be well founded on an Individual basis.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00019172-002	The situation of the Complainant is in keeping with National norms and collectively agreed Regulations. Accordingly, I could not find the Complaint to be well founded on an Individual basis
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00019172-003	The situation of the Complainant is in keeping with National norms and collectively agreed Regulations. Accordingly, I could not find the Complaint to be well founded on an Individual basis.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00019172-004	The situation of the Complainant is in keeping with National norms and collectively agreed Regulations. Accordingly, I could not find the Complaint to be well founded on an Individual basis
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00019172-005	The situation of the Complainant is in keeping with National norms and collectively agreed Regulations. Accordingly, I could not find the Complaint to be well founded on an Individual basis
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00019172-006	As discussed at Section 3:1:1 above.

4: Decision and Recommendation:

Section 41 of the Workplace Relations Act 2015 ; Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003;Section 6 of the Payment of Wages Act, 1991; Section 27 of the Organisation of Working Time Act, 1997; Section 7 of the Terms of Employment (Information) Act, 1994; Section 24 of the National Minimum Wage Act, 2000 andSection 13 of the Industrial Relations Acts 1969requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Act	Complaint/Dispute Reference No.	Summary Decision and Recommendation
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00019172-001	The situation of the Complainant is in keeping with National norms and collectively agreed Regulations. Accordingly, I could not find the Complaint to be well founded on an Individual basis.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00019172-002	The situation of the Complainant is in keeping with National norms and collectively agreed Regulations. Accordingly, I could not find the Complaint to be well founded on an Individual basis
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00019172-003	The situation of the Complainant is in keeping with National norms and collectively agreed Regulations. Accordingly, I could not find the Complaint to be well founded on an Individual basis.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00019172-004	The situation of the Complainant is in keeping with National norms and collectively agreed Regulations. Accordingly, I could not find the Complaint to be well founded on an Individual basis
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00019172-005	The situation of the Complainant is in keeping with National norms and collectively agreed Regulations. Accordingly, I could not find the Complaint to be well founded on an Individual basis
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00019172-006	As discussed at Section 3:1:1 above. This is a Body of Workers claim as per Section 13 of the 1969 Act . The Adjudication Officer has no proper jurisdiction.

Dated: 14/06/19

Workplace Relations Commission Adjudication Officer: Michael McEntee

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